Administrative Law

When Super Deference Is Not So Super

"Super Deference and Heightened Scrutiny" forthcoming in the Florida Law Review

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Litigation over state and federal COVID-19 regulations has highlighted the potential conflict between public health measures and constitutionally protected liberties. Recent cases have implicated the constitutional protection of religious exercise, reproductive rights, and property rights, among other things. These cases also highlight that conflicts over regulatory measures may pit agency expertise against constitutional rights.

As a general matter, courts are quite deferential to federal agency policy judgments, particularly where such judgments are informed by scientific expertise. The degree of deference given to expert agency scientific judgments is so great that it is often referred to as "super deference." The reasons for this degree of deference are understandable, as courts lack the scientific expertise of agencies, but are nonetheless controversial.

In "Super Deference and Heightened Scrutiny," forthcoming in the Florida Law Review, I explore the potential tension between judicial deference to federal agency scientific judgments and the application of heightened scrutiny, and argue that the latter should trump the former. I first became interested in this question in the context of commercial speech regulation, as federal agencies sometimes seek to restrict or compel commercial speech on questionable grounds, but then recognized the conflict had broader implications to other contexts in which heightened scrutiny is implicated.

I have posted a current draft of the paper on SSRN. Here is the abstract:

Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call "super deference." While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there are reasons to question such deference when agency action implicates constitutional matters. In particular, where agency actions trigger heightened scrutiny, such as occurs when agency actions intrude upon expressly enumerated or otherwise recognized fundamental rights or adopt constitutionally suspect classifications, courts should not apply traditional levels of deference. This Article explains why the application of so-called "super deference" is inappropriate where federal agency action triggers heightened scrutiny, considers some of the potential implications of such a rule.

I am still tweaking a few parts, and I am still thinking about the implications of my argument for legislative findings (among other things), so substantive comments are welcome.

NEXT: Framing and Ratifying the Fourteenth and Fifteenth Amendments: “The Reconstruction Amendments: Essential Documents,” Vol. 2

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  1. When judicial review could have been useful, it utterly failed. Result? Thousands of excess deaths in the US, and millions in poor areas of the world. These resulted from the phony lockdown of normal people, after 7 centuries of quarantine practice, and all the quarantine laws of the states said, lockdown the infected, not the normal.

    The lawyer traitor is now a mass murderer, totally biased in favor of big government, the Democrat Party, and the enrichment of the tech billionaires by $1.7 trillion. You lawyers need to be cancelled, you filthy traitors to our country.

    1. You have to love the thousands in India and Brazil laying down their lives right now for the Democrat hoax of a virus. Truly the power of Soros is awesome! Derpity-derp!

      “lockdown the infected, not the normal.”

      Asymptomatic and contagious, how does it work? Derpity-do!

      1. George Floyd died from Covid, the CDC says so….

        1. Is your Doctorate in pottery?

        2. Yesterday, you told us that he died from a drug overdose.

      2. See the village of Vo Euganeo, in the center of the Italian epidemic.

        Most of the deaths attributed to COVID are with COVID, not from COVID. The lawyer dumbass put a bounty on the COVID death certificates. Then the diagnosis became presumptive. Guy is shot in the head, was heard to cough. That is a Democrat fraudulent COVID for $35000.

        The virus is not a hoax. The lockdown is the greatest fraud heist in human history. They put moribund people in nursing homes on the front page to cause a mass hysteria. It is a weak version of the flu. Kids get 6 colds a year, they get everything, not this one.

        Of the excess deaths in 2020, the majority were from cancer and heart disease in people locked down from outpatient health care, You mass murdering Democrat fucks killed 200000 people to get rid of Trump and to enrich the tech billionaires by $!.7 trillion. 25% of nursing patients die a year. Those have to be subtracted from the COVID deaths. When you do that, you got nothing left. With a vaccine, 60000 deaths from the flu. Without a vaccine 100000 real deaths from COVID. Flu deaths were cut in half, causing the suspicion that the flu was misdiagnosed as COVID for money by Democrats.

        The Democrat jurisdictions with the tightest lockdowns had the greatest number of cases. They had the greatest score in fraudulent Medicare payments for COVID. Trump got played on COVID, then lost to a fake election. Weak.

        1. Again, it’s neat how Brazil and India are sacrificing thousands of people to keep the Democrat hoax alive! Derpity Derp!

          “The Democrat jurisdictions with the tightest lockdowns had the greatest number of cases. ”

          1. North Dakota
          2. South Dakota
          3. Rhode Island
          https://www.statista.com/statistics/1109004/coronavirus-covid19-cases-rate-us-americans-by-state/

          Derpity-D’oh!

          1. A few people got colds, and now, you are being hysterical. It is cold in those states, even in the summer. Noses get drippy and incubate all manner of critters.

            1. Hoaxer-denialist.

              Or just buffoon, the usual term.

              1. You are an ecological criminal.

                1. You are an Epsilon-Minus Semi-Moron

                  1. Wow. A huge surge of 7000 people got colds in Michigan, most with minimal illnesses. Shut down the economy of Michigan with 10 million people.

          2. For most people it was equivalent to a mild cold.

  2. “particularly where such judgments are informed by scientific expertise.”

    Claim to be informed by scientific expertise. If you’re not willing to critically examine the claim, how do you know it’s actually true?

    1. “Claim to be informed by scientific expertise”
      Brett are you saying that the agency is lying and that there is no basis of the scientific judgement as conducted by empaneled federal scientific advisory committees.

      1. If he’s not, I will.

        1. Then present some hard evidence. Having served on Federal advisory committees, I’d say your full of it or just delusional.

          1. Don, they’re talking about Federal advisory committees like the ones under Trump which were filled with sychophant, political hacks, not the ones that had well-vetted members.

            1. Could be, but then they are not scientific advisory committees, but political advisory committees. I take it that Adler is speaking about the former.

              1. You can put together a committee to find the best science, and you can put together a committee to arrive at a predetermined conclusion, and without checking, how is anybody going to know which sort you used?

                If you like, make it about Trump. I’m just making a general point about the limits of deference to “scientific expertise”. You can’t just assume what claims to be a product of scientific expertise really is.

                1. The Federal Advisory committees are appointed for terms of 3 to 5 years. They handle a broad array of questions. Their members are highly respected members of their respective scientific communities. In the end that is the best that one can do. If the ignorant want to think that are is a predetermined fix, there is nothing to do but to pity those fools.

                  1. A term of 3-5 years is objective, everything else is opinion.

                    1. No, there’s a pretty objective group of people who comprise the set “respected scientists.”

                      Your idiosyncrasies don’t change that.

                    2. To follow up on SO’s comment: At the highest level their is the President’s Scientific Advisory Committee composed of folks of the highest caliber. Does this group sometimes render politically convenient judgements? Yes. It did so in the case of the explaining “flash in the night” off the coast of South Africa 35 years ago. I was involved in looking into that event seen by the Vela satellite.
                      But that was not a question that the public was concerned about.

                      Besides which the Administration was already making headway with agreements about nuclear weapons work in South Africa and Israel and did not want those discussions disturbed.

                2. You can’t just assume what claims to be a product of scientific expertise really is.

                  That is a distinctively right wing point of view. Maybe because right-wingers so commonly rely on folks who set them selves up as subject matter experts, but without any skin in the game, except to deliver results their allies/clients find pleasing. That is rampant among the pro-gun community, for instance.

                  Want better reliability? Look for experts who have a professional reputation to guard. Those are the ones who get judged long-term by colleagues with an eye to keeping an entire field of study credible. That is how academic expertise is supposed to work. Some fields do a pretty good job—hard sciences, for instance, and mathematics, economics, history, some sociology but not all of it, political science—other fields don’t yet have the knack. Choose accordingly, and stick to the best practitioners in each field to get full protection.

                  1. Nobody in government is ever held accountable. How many experts and politicians suffered their reputations for WMDs?

                    The first models used to guide pandemic policy were complete garbage, but did these guys suffer job and reputation loss? There were many experts refuting Covid policy, and Youtube and Facebook response was to silence dissenting analysis. That isn’t science, its propaganda.

                    1. I did mention academic expertise, right? And compared it favorably to other kinds of authority, saying those others were less rigorously vetted. Why would you suppose attacking bad authorities is somehow a response to me?

                    2. Scientific expertise is a real thing, and it’s at its best when it is being utilized in businesses that are able to fail, so that the management have to take care to actually select for it.

                      In government, you can’t be sure if the people picking the experts are selecting for actual expertise, or are selecting for somebody who’ll tell them what they want to hear.

                      Government corrupts expertise, because in government you can’t count on “being right” being the metric the people in charge care about.

          2. Here is some hard evidence, a stanford study reviewing the scientific evidence shows not only that masks don’t work, that wearing masks itself is unhealthy.

            https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7680614/

            Yet the government “scientific experts” still insist we wear masks.

            1. You see, here is the problem. This is one study by one scientist about a novel phenomena. Only someone who is not very experienced in the world of how professional science works would claim Checkmate!!! from that.

            2. Notice that the journal is Medical Hypotheses. The authors presents a reasoned position with citations. There are also papers that claim efficacy of preventing droplet and aerosol transmission.

              Unfortunately politicians of one stripe have adopted “Trust Science” as a slogan. As a scientist, I do not “trust” science. I read it critically and have confidence in its methods and in the experience of its practitioners. I look carefully at the confidence levels (variances) associated with reported measurement.

              In the end for public policy a prudential decision has to be made. My impression is that the Alder argues that courts should not pay automatic super-deference to policy decisions derived from science.

              1. Don, you’ve been an excellent voice of reason on this issue here.

                I do think a lot of politicians on the left lazily mouth the term ‘trust science.’ However, I think a deference to expertise is much better than a skepticism towards it, or rather the idea that any yahoo can figure these things out as well as people with much more training, education, experience and accomplishment in the relevant fields.

                Having said that, as I write below, ‘super deference’ might be too much because few laws/policies are just matters of technical issues.

                Also, as an aside, I took your advice and recently read a Singer short story, Hanka. I rather enjoyed it. Thanks for the tip!

                1. I am glad that you liked the Singer story. I have read many if not most and certain characters reappear periodically and some are written with the vice of the authors. Those aspects bring a certain continuity in character development, although not nearly as much as you would expert in a novel or even a novella.

                  As for the topic at hand, there are policy issues in which science is an important component and there are technical regulations such as those promulgated by NIST regarding cybersecurity measures to be use by government agencies, banks, etc. The latter are probably less controversial for the public even though they can cause considerable consternation the circles of the enterprises that they affect.

                2. Science is about skepticism. The moment you say, “Trust me, I’m a scientist!” is the moment you’ve stopped BEING a scientist.

                  Because a scientist wouldn’t say that. He’d say, “Here’s the evidence I’m right, do you have any evidence I’m wrong?”

                  Or, to quote Richard Feynman, ““Science is the organized skepticism in the reliability of expert opinion.”

                  1. You don’t know much to anything about high level science works. You’ve little comparative training, education and accomplishment in this field. You *literally* don’t know what you are talking about, but you are for some reason arrogant enough to think you do.

                    1. You’re like the guy Mike works for in early seasons of Better Call Saul. Not ‘part of the game’ that Mike has been in for so many years but thinks he knows as much because he read some things on it.

                      The guy is a fool. Don’t be a fool.

                    2. To be fair, he doesn’t know much of anything about how law works, either. He’s got no training, education, or accomplishment in that field, either. And yet he confidently spouts nonsense on that subject, too.

                  2. Brett,
                    The amazing thing is that many good scientists have urged their professional organizations to sign the “Trust Science” pledge or statement. Certainly that was instigated as a political move and even European colleagues have been okay with it. I was unwilling to sign as I don’t think that trust have much to do with it. In fact my colleagues pride themselves on listening with a skeptical ear.

                    Was the pledge driven by left wing sympathies in the US? I suspect so. BUT it was also motivated by the nearly hysterical cries of “climate panic”, “pandemic porn,” and the like that have come almost exclusively from the QAnon right.

              2. You are an ecological criminal.

              3. Well I agree about trusting science by reading it critically, but I would like to see the studies that show mask wearing is effective, let alone two masks.

                I don’t think there is any doubt mask wearing does affect your oxygen levels, I can definitely tell the difference and the few times I have checked my blood oxygen while wearing a mask its a point or 2 below normal.

                1. You can tell serious scientific people are those who claim that mask wearing is ineffective at preventing virus transmission, but effective at stopping oxygen, despite the fact that coronavirus is about 1,000 times bigger than oxygen molecules.

                  1. It’s effective at reducing oxygen because it interferes with airflow, not because it selectively blocks oxygen molecules. In fact, engaging in exercise wearing a mask is considered an affordable substitute for high altitude training.

            3. Your “hard evidence” is a non-peer reviewed article by a clinical exercise physiologist. It is not a “study,” let alone a “Stanford study.” And it does not show anything about masks being unhealthy.

              Let’s face it: you didn’t read the link. You found it on social media and mindlessly repeated it because it fit your political agenda.

      2. These quacks are agents of the Democrat Party, and of the Deep State. Mission 1: take out Trump even if thousands die to do it. Not just quacks, mass murdering criminals against humanity. Feel free to debate me about the lockdown and its rational basis. Stop calling me names, and you may learn something.

        1. “These quacks ”

          I’d say projection is a hell of a drug but DB is more a loon than a duck.

      3. If it’s science, why do we need a committee? Science is settled. But a committee goes by majority rule. So half, less one think the rest are lying.

        1. I thought David and Brett had cornered the fringe position on this topic but you, iowantwo, have out flanked them.
          You show no understanding of what knowledge or epistemology mean in any field. It’s pathetic

    2. Such an arrogant and/or simplistic view of the world and the fields involved in understanding it. There are lots of topics that are very complex such that it would be nigh impossible for a non-expert to ‘critically examine the claim(s)’ without taking the time to become an expert themselves.

  3. Wow, what an excellent draft. This type of scholarship is welcome in large part because it objectively analyzes each side of a very sensitive polical issue, rather than act as a polemic for one position or another. Think how much better off the nation would be if political discussions conformed to such a standard.

    In the interest of the principle that every analysis of a problem should present a possible solution, I would opine that Prof. Adler might include such a proposal in his paper as I am certain he has ideas on what should be done. And applying that principle to this post, might such a solution be as follows.

    Just as proposed real estate developments in many cases require an Environmental Impact Statement, might it be appropriate for rule making by an agency (or even Congress) to require, prior to adoption, a Legal Impact Statement (LIS) whereby an independent agency, either quasi governmental or private group, be charged with providing an LIS that determines the likelihood that the proposed legislation or rule making is indeed constitutional or with respect to an agency, the agency also adequately authorized by statute to make such rules. Such a determination would not be binding (that can only come from the courts) but in the event of a challenge the LIS could then be accorded Special Deference.

    In this way an agency or Congress would be highly incentivized to adhere to the findings of the LIS, but still able to proceed despite the conclusions of the LIS, knowing that it would have to be highly certain of its legal positions in the face of a Court being highly deferential to the LIS conclusion.

    The objective here is to relieve the courts of some of the burden in the situations nicely documented by Prof. Adler’s paper, while still preserving legal rights of all parties.

    In any case, I think the analysis in the draft is excellent, and some speculation by the author as to how to resolve the issues raised would only improve an already comprehensive study.

    1. “Wow, what an excellent draft. This type of scholarship is welcome in large part because it objectively analyzes each side of a very sensitive polical issue, rather than act as a polemic for one position or another. ”

      Adler is quite good about that, as is Kerr. Volokh seems like he used to be better on that kind of thing until somewhat recently (and depending on the topic). Big parts of why I come here.

    2. Sidney, the LIS is an interesting suggestion. But as a matter of reasoned argument, I don’t see how an LIS could actually accomplish much.

      An EIS, in principle, counts for nothing, and is unenforceable. Its sole legitimate purpose is political—to assure potential factual arguments get a chance to influence political outcomes during controversies. When agencies slight or cheat the EIS process—as some agencies do routinely—the remedy is to sue the agency, but not over the substantive project, just over inadequate EIS process.

      What analogous process would an LIS actually affect? Does it make sense to suggest suing an agency over unconstitutional process, as a means to keep questions of constitutional process out of court?

    3. Federal rules already come with pages and pages of boilerplate discussing statutes and executive orders related to regulatory impact. Major rules are reviewed by OMB as well as the agency. I see no value in an additional level of executive branch review. I don’t want to have a nongovernmental group responsible.

      Moving the GAO earlier in the regulatory process may be beneficial.

      1. Carr, you don’t want a nongovernmental group in a political advisory committee?

  4. Zero deference is due to law breaking. Article I Section 1 gives “all” lawmaking power to the Congress. The non-delegation doctrine prohibits its assignment to an executive agency.

    Let the Congress enact the entire 10,000 page Federal Register yearly, and get held accountable by the voter for its awful judgement. Force the scumbags in Congress to read every word into the record first.

    1. If I give my personal assistant the power to make mundane office decisions reportable to and revocable by myself at all times I’ve not lost the power vested in me.

      1. Congress cannot do that without amending the constitution. “All” is a first grade vocabulary word. It has no ambiguity, nor any flexibility.

        Sorry, if the rule says, all, you get to take out the trash and to do the typing. Change the constitution if you do not like that idea.

        1. All power is still there with the delegation my Derpy friend.

          1. Delegation is not allowed. Delegation violates the separation of powers that keeps us free. Indeed, the administrative state is tyrannical, and must be stopped.

            1. Unresponsive nonsense.

              1. Separation of powers is the sole reason for our freedoms. Bill of Rights of the Soviet Union was longer and more detailed than ours, yet there was no freedom.

                1. Doubling down on hyperbole.

    2. “Let the Congress enact the entire 10,000 page Federal Register yearly, and get held accountable by the voter for its awful judgement. Force the scumbags in Congress to read every word into the record first.”

      I keep telling myself, there is no point in arguing with stupid people

      1. I actually do think there is a point in arguing with stupid people. In social settings stupid people usually end up getting past the point of every one rolling their eyes to everyone just avoiding them or telling them to pound sand. It’s how most civil groups operate. People who continue to provide the value of an angry, dizzy baboon to conversations need to eventually be made to feel unwelcome or change. When people give up the social policing actions on this out of apathy or some weird, Vulcan-robot idea/misunderstanding of logic that ‘everything and person needs a constant full and fair hearing!’ valuable civic discussions become theoretically difficult and empirically rare.

        1. I accept you point to a limited degree. But for the most part I find it to be time wasting. (which I am okay with doing on occasion)

          1. If you are ok with it (like it) it’s not time wasted 😉

  5. A troubling aspect of modern conservatism is to try to win arguments by denying major premises that are fairly obviously true because of a fear that if the major premise is admitted then the argument is lost. That just puts the person in a silly position of running around denying rather obvious premises under wacky conspiracy theories and such. It’s unfortunate especially because it’s so not necessary. You don’t have to argue against the basic premise ‘experts far more often than not know about the technical issues of their field of expertise’ with ‘oh, they are bought and sold by Teh Soros monster’ or ‘the average Joe can with some internet study and a stay in a Holiday Inn Express know more than those smuchks!’ or some other such nonsense. The argument to make against too much deference to agency experts is: most laws are not robotically technical things, they include statements of values and interests to which science cannot give the final word, jurists are as good if not better at divining what the legislature that passed the overarching laws thought about this aspect.

    1. Or, alternatively, a troubling aspect of modern leftism is to try to win arguments by declaring major premises obviously true, and beyond challenge.

      1. Fighting major premises based on expert opinion is what a child would do ‘you can’t tell me what to do, you’re not my dad!!!!’

        Don’t be a man-baby.

      2. And, the point you (of course) missed it this: there can be all kinds of major premises leftists might use, but that gains them…virtually nothing. But the *insecure* must argue against the major premise….

      3. Brett, if you expand the meaning of, “challenge,” to encompass any damn thing anyone says, regardless of facts, no one can contradict your pointless assertion.

        But it is beyond challenge that Trump lost the last election. It is beyond challenge that masking, social distancing, and business closures, used together, suppress Covid-19 contagion.

        It is not a reasonable argument against empirical evidence to argue, “No they don’t, because we won’t do those things.”

        Deploy all the unreasonable arguments you want. Each one just re-confirms you as a crank. At some point, you have to ask yourself, “Supposing everything I say is true, what will happen if I keep asserting things which an overwhelming majority of experts deny?”

        Who knows, maybe later the answer to that question can help you out of your rut, and encourage you to ask whether or not other folks know some things better than you do. Almost everyone you argue with on this blog makes that concession all the time, and without any angst at all. They regard the ability to do it as a strength. Why not you?

        1. .” It is beyond challenge that masking, social distancing, and business closures, used together, suppress Covid-19 contagion.”

          That’s a lawyer statement that is neither true or false, with all the ambiguity
          I notice you did not say reduce the rate of infection. That is some deafening silence.

          1. Iowantwo, what do you suppose contagion is?

            1. You’re intentionally ambiguous.
              Ask an epidemiologist, “ what’s the contagion?” And they will ask you to clarify. Then ask, by what metric.

              Suppress? Maybe mathematically, not statistically. You have all the statistics, but nobody tells us the LSD. Least Significant Difference.

              Like I said, neither true or false

              1. iowantwo, have you followed the links Don Nico has pointed out? There was a paper published by one of the Nature subsidiary pubs that looked like a pretty rigorous statistical treatment to me, but not my field. So maybe you can take it apart? Do you suppose I should be more skeptical of Nature than of you, for instance?

                By the way, I assure you I have not been intentionally ambiguous.

                Let me try this out as a though experiment. If for one week everyone was locked up tight at home, and every business was closed, would you agree that week of near-zero social interaction would reduce contagion? Or would that be one of those near-certain premises right wingers can’t afford to concede? Or is the whole thing ambiguous, because I used the word, “contagion?”

              2. “Maybe mathematically, not statistically.”
                Now that is an incredibly stupid remark by someone who understands neither mathematics nor statistics.

        2. “ But it is beyond challenge that Trump lost the last election. It is beyond challenge that masking, social distancing, and business closures, used together, suppress Covid-19 contagion.”

          Nope. None of the above are beyond challenge. All matters of leftist faith – or accepted as true by the left for political purposes.

          The masking assertion is particularly problematic. There are, to this day, no real studies showing masking, as is done by the general public, reduces contagion. Sure, physicians can reduce such by changing masks constantly, never reusing them etc, and being zealous about hand washing. But the public doesn’t do that. Instead of that, the public wears theirs for days, and not minutes, and often wears neck gators, hand made masks, bandanas, etc, with porosity orders of magnitude greater than the SARS-CoV-2 virons instead. Meanwhile, O2 inhalation is reduced, and contaminants of various types build up over time on the insides of the “masks”. MybPhD daughter routinely sends me pro-masking articles, and they are mostly cherry picked surveys and argument by analogy. But then when you look at the shape, size, and polarity of the compared virons, they are inevitably structurally different.

          As for social distancing, Europe apparently went with 1 m, and the US with 2 m (6’). Why? Now the CDC has apparently switched to the 1 m standard. Who is right? Making things worse, many of these “studies” utilized theories of infection that are turning out to be wrong. How is the virus primarily actually spread? The answer appears mostly not to include casual airborne contagion – which social distancing is supposed to address.

          1. “All matters of leftist faith – or accepted as true by the left for political purposes. ”
            More comments from the lunatic fringe.
            The correct distance is 6 to 10 feet. There are plenty of good aerodynamics that explain that. But they will be beyond your undertstanding.
            But just in case you feel brave have a look at this paper from MIT.
            PNAS https://doi.org/10.1073/pnas.2018995118
            Bazant and Bush, “A guideline to limit indoor airborne transmission of COVID-19”

  6. Yikes. As strict scrutiny spins out of control, toward a crash into court supremacy, Adler suggests more strict scrutiny.

    Professor Adler, on the most general level, please explain by what principle strict scrutiny itself can be limited, as it impinges on the more-explicitly constitutional Necessary and Proper clause. Or do you suggest Necessary and Proper just be thrown overboard? Should strict scrutiny be applied routinely, with the aim of controlling the executive, to assure courts get to decide all questions about the constitutionality of means, as well as questions about constitutionally legitimate ends? If that is the proposal, what is left for legislators to do? What would that leave of this, from John Marshall:

    Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

    Professor Adler, how, in principle, do we know when strict scrutiny would, “pass the line which circumscribes the judicial department?” How, in principle, do we know when strict scrutiny would, “pass the line which circumscribes the judicial department, and . . . tread on legislative ground?”

    When did the court acquire the pretensions to such power which it previously disclaimed? Did it get those pretensions in a footnote it wrote itself?

    1. So, you are prioritizing original Constitutional text over amendments thereto. Doesn’t usually work that way. Your Necessary and Proper theory can be utilized to overrule pretty much any and all of the fundamental rights enshrined in the Bill of Rights.

      1. Your Necessary and Proper theory can be utilized to overrule pretty much any and all of the fundamental rights enshrined in the Bill of Rights.

        No Bruce, it can’t. Not if the legislative purpose is to overturn rights. Under Marshall’s interpretation, credence to the Bill of Rights would indeed require ignoring the Necessary and Proper clause. Marshall preceded, conditionally, “Where the law is not prohibited . . .” I quoted it. A legislative purpose to overturn rights is prohibited by the Bill of Rights.

        But note, the question I raised touches on personal rights only incidentally. It is primarily about whether the Court has jurisdiction to invade the legislative prerogative to determine which means may be chosen to accomplish legitimate ends. Or, alternatively, whether the constitution empowers the Court to review only the legitimacy of the ends. Marshall was unambiguous to say where the ends are permitted, and the means not otherwise prohibited, it is only the latter. He rejected claims to the contrary as, “pretensions.” I quoted that too.

        On that question of jurisdiction, rights have nothing to say. The original text of the constitution governs.

        I assert strict scrutiny gets out of line—and indulges in Marshall’s rejected pretensions—when it asserts existence of rights confers power on the Court to review every choice of means—including even means which do not attack rights. For example, a generally applicable law to suppress a pandemic, which does not target religion, but which creates in passing temporary burdens on religion, just as it creates also temporary burdens on all sorts of other conduct, practices, and rights. No amount of metrical juggling by the Court could turn that into a constitutionally illegitimate end which the Court would be empowered to overturn.

        However persuasive you find the Court’s reasoning that in a case like that religion should still be privileged, and the others not, I insist it is not for the Court to weigh in. It does not have power to say which means are necessary. It is the legislature’s place to do that. And that legislative prerogative is not constrained to find completely unburdened religious practice more necessary than suppression of a deadly pandemic.

        It is the Court’s place to say whether suppression of a pandemic is a constitutionally legitimate end. It is for the legislatures to find the proper means to do it. That is how we keep political accountability in the system.

        Political accountability is lost if strict scrutiny reaches beyond that distinction, to insist instead that the Court is empowered to overturn every legislative choice of means which does not prioritize religious rights ahead of everything else, and ahead of all other rights, including even the right to life. It is unconstitutional—and unwise—to put a decision like that outside the reach of political accountability. Had this nation endured a much more severe pandemic than the one it still struggles against, I would have said, “outrageous,” instead of merely, “unwise.”

        1. No Bruce, it can’t. Not if the legislative purpose is to overturn rights. Under Marshall’s interpretation, credence to the Bill of Rights would indeed require ignoring the Necessary and Proper clause. Marshall preceded, conditionally, “Where the law is not prohibited . . .” I quoted it. A legislative purpose to overturn rights is prohibited by the Bill of Rights.

          Even if a single statement by John Marshall could bear the weight you put on it — it can’t — it doesn’t say what you think. It doesn’t address the interplay between the N&P clause and the Bill of Rights at all; you’re misunderstanding the case. (The Bill of Rights does not speak of “purpose” in the first place.)

          In plain English, all that Marshall’s quote — not the text of the constitution, mind you, but a single judicial opinion — says is that the courts shouldn’t make policy choices. But whether something invades a fundamental right is not a policy choice. The existence of rights absolutely does confer power on the courts to review every choice of means. (To say “including even means which do not attack rights” begs the question the courts have to address.)

          I would further note, as was explained to you previously because you completely failed to understand the constitution, that the N&P clause only applies to the federal government. There is no equivalent constitutional provision applying to the states. As most of the pandemic-related policies the courts have been scrutinizing in the 1A context are state laws, Marshall’s quote has nothing to say on the subject.

    2. “As strict scrutiny spins out of control, toward a crash into court supremacy, ”
      The alternative is for either the Executive or the Congress to assume a dictatorial status. As Congress has has the disease of shrinking cojones for decades we are left with the Super Imperial Executive ruling the country.

      I’ll take my chances with the courts.

      1. “I’ll take my chances with the courts.“

        Because a lawyer appointed to a judgeship, is less tyrannical than a lawyer elected to the legislature?

        1. Yes, that is one reason.

    3. I would say that your complaint speaks to an issue beyond the scope of my paper, which is what sorts of actions should be subject to heightened scrutiny in the first place. That’s an important question, and something that I think tends to drive how jurists and others approach some of the specific conflicts I identify in the paper. My aim is to explore what should be done IF heightened scrutiny applies, without regard to whether it should apply more or less often than it does. (IOW, my analysis would apply whether your view of rights is closer to that of Randy Barnett or Robert Bork.)

  7. One useful purpose of a mask mandate is, it helps to identify who is a Democrat douche bag. At best, masks reduce infections by 2%. Masks are a major ecological catastrophe, causing mass eradications of wildlife and of ocean life. Mask enforcers are major environmental criminals. They should be arrested, tried and handed long prison sentences.

    1. Pathetic times ten. It’s like a parrot has been put in a box, shaken up, and then released to speak.

      1. You are an ecological criminal.

        1. It’s ok Iago, you’ve just been shaken up…

          Stop drooling.

      2. Pathetic times ten. It’s like a parrot has been put in a box, shaken up, and then released to speak.

        Parrots are smarter. It’s more like a failed AI experiment. Or a game of Mad Libs.

  8. To put my above questions to Adler more succinctly, I am concerned that a judicial power to limit the executive not become instead a pretext to constrict the legitimate scope of legislative power.

    I suggest recent cases involving emergency powers to contain pandemic disease illuminate that question with stark clarity. There can be no question at all that an emergency power to suppress contagion is a legitimate constitutional end. There is little if any question that the nature of emergency power—at least with regard to deadly contagion—encompasses temporary restrictions of personal rights.

    Given that, and given Marshall’s allocation of jurisdiction over ends and means, on what basis can the Court legitimately meddle with emergency power to suppress a pandemic? What would define the point where the Court goes too far?

    1. “on what basis can the Court legitimately meddle with emergency power to suppress a pandemic”
      When citizen sue to challenge an executive decision, the Courts are the only Constitutionally recognized arbiter.
      Unlike the Roman republic the US does not have the office of Dictator, whose lictors could carry the fasces with axe heads, to govern in times of great emergency. Even in the Roman Republic the office of Dictator was limited to six months

      1. Stephen,
        If you ask why people have to be able to file suit against the Executive, the answer is that the People are acting as the Sovereign

        1. No, Don Nico, in our system, citizens act in a dual capacity, individually they are subjects, jointly they are sovereign.

          People act as subjects when they file suit against the executive. They bring suit explicitly as named individuals, under the government’s jurisdiction, in the government’s courts.

          The People act as the Sovereign when they act jointly to elect the executive, and when they impeach the executive. Both processes exercise the constitutive power, the defining power of sovereignty.

          Sovereign power always acts at pleasure, never under constraint. Court procedure and decisions perfectly embody the principle of constraint, and most especially the constraint of citizens involved in lawsuits. Sovereignty in the courts is for the People themselves to exercise jointly, when they decree the supreme laws, and when they exercise prerogative to punish crime.

          However, it does encourage me (Did I just hear someone yell, “Don’t encourage him!’) when I see anyone get into the spirit of paying attention to the too-much-ignored role of sovereignty. It is a notion which acts as the keystone of this nation’s constitutional system. When you get the knack of thinking that way, it can reward you with accurate historical insights which take you by surprise, and delight you with the way they serve to clarify and even systematize previously obscure and apparently self-contradictory historical interpretations.

          The founders left us a more orderly system than most people suppose. But to see that order clearly, you have to leave the notion of sovereignty in it, and credit it the way the systematizing founders such as Jefferson, Madison, Hamilton, and James Wilson did.

          After mentioning all that, I should add that I usually refer to sovereignty in context of concepts like originalism. It makes sense to point out to would-be originalists some of the fundamental facts of history that so many of them overlook. That said, I am not an originalist myself, more the contrary.

          1. individually they are subjects,

            No. We’re not British. We’re citizens.

            1. The British are not citizens?

  9. It’s too bad we can’t peer inside COVID-19 decisionmaking to find out what the executive branches were really thinking. FOIA and state public records laws won’t do the job at the highest levels of government.

    Biden said he was going to issue a mask mandate. When he became president suddenly the CDC director used his specialized expertise to determine one was needed. Nonsense. The subordinate was doing what his boss told him to. If you believe in the unitary executive the decision was ultimately Biden’s to make, but any court reviewing the order under the APA should be very suspicious. Like judges were suspicious of Trump over the so-called “Muslim ban” because he had spoken of it before taking office.

    1. Masks do serve a good purpose. They tell everyone the wearer is a Democrat douchebag. Aside from that usefulness, they are an ecological disaster, causing mass eradications of wildlife and of ocean life.

      1. In the process of our seasonal move between AZ and MT. Seriousness of the mask mandate in the states crossed (AZ, NM, CO, WY, and MT) appears to correlate fairly well with party strength in these states. NM was, by far, the worst, with CO following it. Masks were few and far between in WY, and here in the more urban parts of MT, mask wearing is below 50% even when a store has a sign up explicitly requiring the wearing of facial diapers. Rural MT is close to zero masking.

  10. Initially I would point out that giving anything Government says Super Deference is a start on the road to disaster. Remember how 55 Mph saved lives, well 25 Mph would have saved many more. Two masks are better than one. Similar aren’t they. Instead of giving Super deference and taking judicial notice of administrative findings and regulations that stem therefrom; a higher standard of scrutiny would put the burden on the agency to come forward and “show the work.” Like having to prove foreign law as a matter of fact. Here a judge could look at the work, listen to other side and make an informed decision. Deference short circuits due process.

  11. Speaking as a mathematician (Ph.D. MIT) and mathematical modeler (I wrote the model that did the world’s first numerical air quality forecasts), I frequently see CoVID related models that a good undergraduate should be embarrassed to use being used by these agencies.

    On the basis of the observed evidence, such deference is unjustified; moreover, the agencies should be required to detail their justifications and be required to make them available for external review.

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